Liability of Intermediaries for copyright infringement

At the end of last year, the Federal Court of Australia issued a judgment in against the Redbubble platform, in favour of Pokemon.

The judgment is here:  Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 154

This is an important copyright and consumer protection law case.  Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).

There is also a similar case pending, involving the Hell's Angels.

A good summary is located on the IP Whiteboard blog.

Alleged Illegal Conduct by Apple

Apple is being sued in Australia by the ACCC in relation to the Error 53 software fault in iPhones.  When this fault bricked iPhones and iPads, Apple refused to fix the problem where third parties had done prior repairs. 

The latest judgment on a procedural motion is http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1329

realestate.com.au Federal Court decision

On Friday, the Federal Court of Australia handed down its decision in the realestate.com.au v. realestate1.com.au case.

The decision is [2013] FCA 539.

The case concerned a generic term, that was used as a domain name, but where significant advertising had built up recognition of the brand.  The Applicant lost on consumer protection grounds but was successful in relation to trade mark infringement.  The case shows the risks of using a dictionary term as a brand, and the importance of a trade mark registration.

"245    However that observation about the ordinary case does not really address (as neither Perram J nor Chesterman J were called upon to address) a situation where the highly descriptive nature of the second-level domain (“realestate”) makes a suffix such as “.com.au” essential to brand or name recognition. Consumers with some familiarity with realestate.com.au as a brand are likely to look beyond “realestate” and to the entire domain name in order to establish identity. A real danger of confusion again arises because in the scanning process which may occur on a search results page, some consumers will miss the indistinctive “1”. I have therefore concluded that the use of “realestate1.com.au” as part of an internet address on a search results page, constituted the use by Real Estate 1 of a mark that was deceptively similar to REA’s realestate.com.au trade marks."

Hotel Executive In Trouble over TripAdvisor reviews

A hotel PR person posted TripAdvisor reviews (mostly about restaurants) and got it serious trouble for it.  See stories here and here.

Changes to Laws In Australia involving licensing software to consumers

Have a look at the Mallesons blog.

Who does this affect?

The new laws raise issues for all software licences with Australian end-customers where either:

• the software is "of a kind ordinarily acquired for personal, domestic or household use or consumption"; or
• the amount paid or payable for the software is $A40,000 or less.

Those end-customers are taken to be "consumers" by the ACL, even if they are multinational corporations or government entities well-equipped to negotiate to protect their interests.